First UK-Latin America Political Philosophy Research Network

We are pleased to announce the set up of the First UK-Latin America Political Philosophy Research Network, which is financed by a British Academy International Partnership grant.

This exciting project will bring together academics from the UCL hub of political theory and political philosophy with scholars working in political philosophy and political theory throughout Latin America.

Currently the ‘UK-Latin America (Analytical) Political Philosophy Network’ links hubs of researchers working in at least three universities in Argentina (Buenos Aires University; Di Tella University) and a university (UNAM) and research institutes in Mexico with political philosophers at University College London, UK. With discussions ongoing with academics in Brazil, Chile, Colombia, and Costa Rica.

Political Philosophy of Economic and Social Human Rights (Progressive Realisation)
The first three years of the project will focus on the political philosophy of human rights, broadly construed. We have an exciting initial programme of network workshops lined up, focusing on the key problem of how to conceptualise the progressive realisation of economic and social human rights in normative/moral terms.

The first workshop will take place in Buenos Aires on the 28, 29 & 30 March 2017 (details to follow soon).

This will consist of a 2-day workshop followed by a PhD student Masterclass with representatives from different network countries.

Future workshops will take place in Mexico City (2018) and London (2019).

The network’s overall mission is to focus on using the methods of Analytical Political Philosophy to arrive at solutions to key problems in political theory and practice.

Colleagues working in human rights theory, and in particular in theories of progressive realisation and core obligations, from an analytical political (and legal) philosophy perspective are welcome to attend the network workshops and to join the Network.

We especially welcome Latin American colleagues who wish to participate in events or join the Network either individually or by creating institutional links, to please contact us using the contact details below.

If you are interested in attending the workshops, please contact:
UCL Institute for Human Rights
Human-rights@ucl.ac.uk

Or you can directly contact Dr Meckled-Garcia for information:
s.meckled-garcia@ucl.ac.uk

PhD Student Masterclass Seminars
We particularly welcome PhD students who wish to participate in the network, in any of the project countries. Doctoral students may attend the workshops by invitation, and are invited to attend the Network PhD Master Class Seminars, subject to numbers. These will take place alongside the project workshops in each of the project countries in 2017, 2018, and 2019. These will be led by academics from each of the cooperating countries.

If you wish to participate, please contact us at the above email addresses.

The project hub coordinators are:
Dr. Saladin Meckled-Garcia (UCL, London, UK), Contact: s.meckled-garcia@ucl.ac.uk
Dr. Julio Montero (Lecturer, Philosophy, Buenos Aires University and Researcher for the National Research Council, Buenos Aires, Argentina), Contact: jmnormandia@gmail.com
Dr. Moises Vaca (UNAM, Mexico City, Mexico), Contact: moisesvacap@gmail.com

But was the Court’s ruling on marriage democratic?, by Stephen Macedo

Never has a revolution in moral and legal judgment occurred so quickly. Only 29 years ago, a conservative majority on the Supreme Court dismissed arguments for the most basic constitutional protections for gay people as, “at best, facetious.” Now, thanks to a new majority on the Court, we have something barely imaginable just a few years ago: a constitutional right to marriage equality.

Yet there is a potential stain on this victory for equal rights. The four justices dissenting from the Court’s historic same-sex marriage decision charge that it is undemocratic. According to Chief Justice John Roberts, the Court is “stealing this issue from the people.” A “judicial Putsch,” Justice Antonin Scalia declares.

The charge of democratic illegitimacy rolls through the four dissents like thunder, and it may resonate widely. Some notable progressive legal thinkers, such as Mark Tushnet and Jeremy Waldron, have long warned that the liberal reliance on judicial review is inconsistent with democracy. Chief Justice Roberts repeatedly quotes Justice Oliver Wendell Holmes’s admonition that the Constitution “is made for people of fundamentally differing views.” “In our democratic republic,” says Roberts, when a sought-after right is not explicitly listed in the constitutional text and people disagree about its merits, the decision to recognize it “should rest with the people acting through their elected representatives.”

Many people may nod in agreement. But the role of the Court in our democracy is more complicated than the Chief Justice lets on. Indeed, the legal authorities that he cites tell a different story. Consider a source that Roberts quotes approvingly for support: John Hart Ely’s influential 1980 book Democracy and Distrust.

Ely, like Roberts, worried that unelected judges risk exceeding their proper role in a democracy when they rely on their own moral judgments in overruling the decisions of elected officials. But Ely also recognized that the Constitution frequently uses broadly worded, abstract language whose interpretation requires value judgments. For example, the Constitution prohibits “cruel and unusual punishments” rather than offering a list of prohibited punishments. We must decide which punishments are cruel. The 14th Amendment commands, “No state shall… deny to any person within its jurisdiction the equal protection of the laws.” We must decide what kinds of unequal treatment or discrimination are constitutionally unacceptable. The answer, as Ely wrote, cannot be found in the specific terms of the Constitution or in “the ruminations of its writers.”

The same is true, Ely noted, of various constitutional provisions protecting individual rights and liberties. Toward the end of the Bill of Rights, the Ninth Amendment refers to other rights “retained by the people” without specifying what they are. The 14th Amendment refers to fundamental “privileges or immunities” that are never listed.

Where can constitutional interpreters look to give meaning to the Constitution’s abstract guarantees of equality and liberty? Chief Justice Roberts says judges must find “neutral principles of constitutional law” that are “deeply rooted” in “history and tradition.” References to “tradition” and to Blackstone, Lord Coke, Magna Carta, and Cicero abound in the dissenting opinions. But, of course, the mere fact that something has been part of our history or tradition is not a reason for endorsing or preserving it. Traditions speak with multiple and conflicting voices. “Whose tradition counts?” asked Ely. And why should we prefer waning traditions to emerging ones?

To require that rights claims must be “deeply rooted” in “history and tradition” is hardly politically “neutral.”
To require that rights claims must be “deeply rooted” in “history and tradition” is hardly politically “neutral.” Rather than providing equal protection, that requirement puts new groups such as gay and lesbian people at a distinct disadvantage. And it gives an undue presumption of legitimacy to forms of ill treatment that are longstanding, such as discrimination against sexual minorities.

Justice Scalia offers what seems to be a simpler formula for discerning or denying fundamental rights: “When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” Original meaning, end of story.

But when the 14th Amendment was ratified, the House and Senate galleries and the public schools of the District of Columbia were segregated on the basis of race. People then deemed acceptable many forms of racial segregation that we know to be shameful. Why should we limit the meaning of the broad principles of liberty and equality set out in the 14th Amendment to the specific applications that the amendment’s drafters happened to approve—but in their wisdom chose not to enumerate in law?

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In making constitutional judgments or devising interpretative rules, none of us, whether we are citizens or judges, can avoid relying on our own best value judgments about how to understand democracy, liberty, equality, and the claims of minorities. There are no “neutral principles” to adjudicate these basic questions of political morality.

The view that the Courts should generally defer to the elected branches is a defensible position. But the four dissenters on same-sex marriage rights have been highly selective in their willingness to defer to elected officials. They have been anything but deferential with respect to laws seeking to regulate the power of money in politics or the easy availability of guns in society, or laws attempting to undo the dire effects of racial injustice in the only way possible: by taking account of race for remedial purposes. And they have not been politically neutral either.

Ely’s account of the role of the courts in a democracy is far better than the ones offered by Roberts and Scalia. Ely argued that we can reconcile judicial review and democracy and give meaning to some of the Constitution’s open-ended language by viewing the founding document as striving to realize and perfect representative democracy. Chief Justice Roberts himself describes democracy in terms of rule by “the people,” which rightly suggests the whole people engaged in a system of collective self-rule. Democracy so understood is “inclusive,” as Justice Ginsburg and others have stressed; it cannot countenance the exclusion or the domination of some by others.

If that sounds a bit “airy-fairy,” as Justice Scalia might say, consider that this is precisely what James Madison meant when, in The Federalist Number 10, he described “majority faction” as the leading vice of popular government. Madison insisted that democratic legitimacy depends upon the protection of minorities against majorities who deny their rights or unfairly discount their interests.

Here then, judicial review finds a rationale and mission. As Ely said, “Courts should protect those who can’t protect themselves politically” because “the duty of representation that lies at the core of our system requires more than a voice and a vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others, or otherwise to refuse to take their interests into account.” The courts can enhance democracy by undertaking “more stringent scrutiny” of legislation that disadvantages minorities long subject to prejudice and discrimination. Ely took specific note of gays and lesbians: “Homosexuals for years have been victims of both ‘first-degree prejudice’ and subtler forms of exaggerated we-they stereotyping.” Why didn’t the Chief Justice cite Ely on this point?

Justice Kennedy’s analysis in the same-sex marriage case reflects precisely this democracy-reinforcing sensitivity to the interests of a historically “discrete and insular” minority. Kennedy recounts the long history of discrimination and prejudice against gays, and the toll exacted by life in the closet. He is clearly right that continued exclusion from marriage demeans and stigmatizes same-sex couples and their children. And Kennedy, to his great credit, goes beyond Ely by adding a proper appreciation for the equally fundamental importance of individual liberty: a value amply supported by the text and overall design of the Constitution, but which Ely never sufficiently appreciated.

The conservative justices are correct to point to countervailing concerns. The Court’s decision will have subtle and possibly profound effects that cannot altogether be predicted now with any confidence. That is true whenever courts or legislatures significantly alter the law. But Kennedy is right nonetheless to insist on heeding those who brought the case: “The petitioners’ stories make clear the urgency of the issue.” These people have lives to lead, “and for them and their children the childhood years will pass all too soon.” The cost of waiting is that some people’s lives will be lived under a more enduring shadow of injustice.

Chief Justice Roberts observes that the families seeking marriage equality “make strong arguments rooted in social policy and considerations of fairness.” Good for him! But how can he think that a constitution that demands for all citizens the “the equal protection of the laws” is deaf to these families’ pleas for fairness?

Conservatives may respond that they agree with much of the argument I have made, but are, like the Chief Justice, skeptical about judges’ “insight into moral and philosophical issues.” Judges, however, need no special expertise in moral philosophy. What they do need is everyday moral sympathy and judgment of the sort that Justice Kennedy amply displays in his same-sex marriage opinion.

What about the point that Supreme Court justices are unelected and unaccountable? The framers of the Constitution insulated the Supreme Court from direct electoral accountability so that it could render impartial judgments and protect minority rights against political majorities. Life tenure helps insure that the justices need not worry about being thrown out of office for upsetting the powerful. Yet, the Supreme Court is democratically legitimate because the justices are nominated and confirmed by public officials authorized to govern in the name of the people.

Does this mean the Court is unaccountable? By no means: the justices must justify their judgments in reasoned decisions that are published for all the world to pick over and criticize, as we are doing now. The Court is accountable for the quality of its reasoning.

Justice Scalia charges, finally, that the Court is utterly unrepresentative in a way that undermines its ability to be a catalyst for “social transformation.” There is not a single Protestant of any denomination on the bench, he observes, and no genuine Westerner or Southwesterner; the justices are all elite lawyers. He might have added that some justices have served for nearly three decades, barring others with fresher and more diverse perspectives. Those are legitimate concerns. Someday we might take them seriously enough to set term limits for justices.

But meanwhile let us celebrate the good sense of Justice Kennedy and his four colleagues, and the constitutional democracy that made this possible.

(Originally published at the American Prospect and republished here with the author’s permission).

Manifest for a Mexico without crime

To the Mexican Government in all of its orders,

To the civil society and the Mexican people in general

1. The crime committed against more than 43 students of the Escuela Normal Rural Isidro Burgos, in Ayotzinapa, Guerrero, in the past month of September, was a crime against humanity (according to the definition given in Article 7 of the Rome Statute of the International Criminal Court, ratified by Mexico in 2005), committed, sponsored and facilitated by actions and omissions of public officials in the exercise of their capacities —whom were already acting against students from this school for quite some time. This crime unveiled a net of collusions that has prevailed in the state of Guerrero and, to a greater or lesser extent, in the rest of the country, a net in which criminal organizations, governmental authorities of practically all orders, politicians of different political parties, as well as private interests, take part to different degrees.

2. The outrage against such crime has motivated a social movement that is fully justified on all counts: morally, humanely, politically, and legally. Decisive support to this movement by all Mexicans who have a sense of responsibility for their homeland is to be expected. Even though this movement is fueled by a demand stating that this particular crime should be solved and that justice be properly served, it should not be misunderstood as a movement against a single crime but against a generalized state of moral, social, and political decay, capable of breeding crimes of this sort. This movement demands that adequate measures be taken to effectively deal with such generalized situation.

3. The federal government of Mexico and —in relation to their jurisdiction and legal obligations— the other orders of government as well, must assume their responsibility of serving justice and enforcing the law with regards to the crime committed, responsibility that has only been assumed in discourse but not in practice, as the federal government took 10 days in taking the investigations under its jurisdiction and the results after almost two months have been entirely unsatisfactory and even suspicious. Considering this, the government must not only reiterate in official declarations its commitment to the clarification of this crime but also adopt effective measures to solve it.

4. The Mexican government should also assume its responsibility with respect to this state of decomposition, capable of replicating crimes like this in any part of the country, like the more than 15 extrajudicial executions by members of the Mexican army in Tlatlaya, Estado de Mexico, in the past month of June, among many others, and take effective measures to preclude the reproduction of such crimes, as well as the repeated violation of human rights at the hands of public officials in the exercise of their capacities.

5. The Mexican government in its different orders must categorically respect the right to protest of the hundred of thousands of people partaking in the movement generated by the indignation against this crime; it should not repress this movement, as it has regrettably happened in many cases —the most recent one being the arbitrary detention of 11 students in the protests of November 20th in Mexico City. The government should not conflate the intention of these pacific manifestations with the putative intention of destabilizing the country. The distinction between the two is quite clear to identify, especially by the authorities that have as one of their functions the recollection of intelligence. Accordingly, to suggest (as President Peña Nieto did in his discourse of November 18th, after coming back from China) that at some point the two intentions might not be distinguishable, it is in practice a clear encouragement to repress this movement and an anticipated justification for the abuse to come at the hands of the police and military authorities against the population. Instead, the government must state publicly its rejection to all kind of aggressions against this movement, especially those coming from public power.

6. At the same time those who —with the authority that this social movement bestows upon them— organize and lead the protests in demand of justice, should require that their followers do not engage in acts of violence or behavior that could be understood as an invitation to incur in acts of violence, and should demarcate themselves from the violence that has taken place or may take place during such protests. No one desires for there to be violence in Mexico, except for those that do no cherish this country. The violence that breeds from above, either from the political or economical elite, should not be answered back with more violence. Citizens may succeed in their fight only if they assume a radically different stance from those that have horrified the world with their crimes. It is already clear that by harming the rights of others this movement may only let go of support it cannot afford to lose.

7. We propose that the movement concentrates its forces around the following concrete demands:

a) The full and detailed clarification of the crimes committed in Tlatlaya and Ayotzinapa, including and explanation regarding what allowed these atrocities to happen and, of course, the punishment of all the criminals involved directly or indirectly in all orders and modes of participation. Justice should be fully served.

b) Urgent measures should be taken to effectively deal with the social, political and moral decay that has given place to the reign of organized crime (in the broadest possible sense) in the country, measures that may effectively preclude the recurrence of such horrific crimes.

Among these measures we should expect: (i) the establishment of a citizenship-based supervising mechanism that may overlook the candidacies proposed by political parties; (ii) the prompt satisfaction of the recommendation that the UN Working Group on Enforced or Involuntary Disappearances addressed to the Mexican Government in 2011; (iii) the public exhibition, and citinzenship-based supervision, of the guidelines under which members of the police and the military are implicitly or explicitly taught and trained.

c) Urgent measures to fight back impunity, that spreading disease in the country that is the breeding grounds for new crimes. There must be clear signs that the more than 22, 000 cases of disappeared people in the country have priority under the government’s security policy.

d) The commitment from the government to categorically respect the right to protest of the Mexican citizenry, without promoting confusion and direct or indirect invitations to repression. This commitment must include the destitution of the authorities that partake, promote or tolerate unjustified acts of public force. In particular, we demand the immediate release of all the students and people arbitrarily detained in Mexico City during the ‘Global Action for Ayotzinapa’ of November 20th.

For a Mexico without crime —especially without crimes committed by those whose obligation is to protect the Mexican population.

(This manifesto was elaborated by a group of academics based at the Institute for Philosophical Research of UNAM. To suscribe the manifesto, please go to http://www.filosoficas.unam.mx/~sincrimen/).

How to squeeze the political parties, by NYT editorial board

Reince Priebus, the Republican Party chairman, was practically giddy on Wednesday imagining the riches he can squeeze from big private bank accounts as a result of the Supreme Court decision that knocked down yet another campaign finance limit. “We are grateful and we are excited,” he said, explaining that donors will now be able to “max out” in giving to more party committees, at far higher levels than previously allowed.

But actually, it is the big donors who will be squeezing the parties, not the other way around. They now have far more power to dictate terms to politicians, and will soon begin issuing demands to benefit their special interests.

Why? Donors will now have a wide array of choices in where to spend their political dollars, thanks to the Supreme Court. The 2010 Citizens United decision, combined with lower-court rulings, opened the door to giving unlimited amounts of money to “super PACs” and nonprofit political groups, money that was spent on electing and defeating specific candidates. The court’s McCutcheon decision on Wednesday allows donors to give as much as $3.6 million to joint fund-raising committees set up by the parties, which can be used to benefit individual candidates.

That makes the parties players in the big-money race for the first time, since an individual’s contributions to party committees had been limited to $74,600 per election cycle. But the parties will be competing with the super PACs for those six-figure checks, and the check writers know it. For that kind of money, donors expect something beyond a nice table at a fund-raiser and a photo with a party leader. And the parties, which are controlled by the top lawmakers, are in a position to provide it — tax benefits, special clauses in regulatory bills, spending that helps a particular industry.

Donors, of course, have differing needs and demands. Some, like the Koch brothers, seek broad ideological change, knowing that reducing the overall power of government will give their widely scattered industries more freedom and higher profits, unburdened by pesky environmental and financial regulations. Others, like Tom Steyer, a billionaire investor, are more narrowly focused on specific issues, like reducing man-made climate change.

Industries and their executives often have even more closely tailored demands of government, and are willing to pay to make those demands in person. A cable company wants approval of a merger. Wireless companies and broadcasters want pieces of the frequency spectrum. Banks and payday lenders want less regulation and oversight. Medical device makers want to get rid of a tax. All of them spend fortunes on lobbying, and now their executives can dangle the prospect of millions before the parties to get the access they need. (The companies themselves can’t write those checks, but they can give whatever they want to super PACs and nonprofits.)

A memo by Covington & Burling, a legal and lobbying firm, explains to its corporate clients how giving post-McCutcheon will work. “The difference here is that, unlike with super PACs, elected politicians are able to request the contributions directly from the high-net-worth donor,” the firm wrote. The decision will “allow power to collect around any member [of Congress] who can command a national or regional base of wealthy donors, such as a prominent Tea Party or environmental advocate.”

In other words, lawmakers who are the most responsive to special interests and ideologies will reel in the biggest donations to their parties, thereby gaining more power.
Chief Justice John Roberts Jr., showing insincere naïveté, doesn’t consider that purchase of access to be corruption, which he apparently detects only in bribery. But the donors know that American politics is now for sale, and they are ready to buy.

(Publicado originalmente en el New York Times el 3 de abril de 2014).

Supreme Court strikes down overall political donation cap, by Adam Liptak

The Supreme Court on Wednesday continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.

The ruling, issued near the start of a campaign season, will very likely increase the role money plays in American politics.

The 5-to-4 decision, with the court’s more conservative members in the majority, echoed Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.

Wednesday’s decision seemed to alter campaign finance law in subtle but important ways, notably by limiting how the government can justify laws said to restrict the exercise of First Amendment rights in the form of campaign contributions.

The court’s 88-page decision reflected sharply different visions of the meaning of the First Amendment and the role of government in regulating elections, with the majority deeply skeptical of government efforts to control participation in politics, and the minority saying that such oversight was needed to ensure a functioning democracy.

Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”
In a dissent from the bench, Justice Stephen G. Breyer called the majority opinion a disturbing development that raised the overall contribution ceiling to “the number infinity.”

“If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.”
Such oral dissents are rare, and they signal deep disagreements. But Chief Justice Roberts and Justice Breyer noted from the bench that the other side’s arguments were well presented.

Wednesday’s decision did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.

In his written opinion, Justice Breyer said Wednesday’s decision would allow “a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The ruling, which goes in effect in a matter of weeks, concerned only contributions from individuals. Federal law continues to ban direct contributions by corporations and unions, though they remain free to spend unlimited sums through “super PACs” and similar vehicles.

The case, McCutcheon v. Federal Election Commission, No. 12-536, was brought by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee. Mr. McCutcheon, who had contributed a total of about $33,000 to 16 candidates for federal office in the 2012 election cycle, said he had wanted to give $1,776 each to 12 more but was stopped by the overall cap for individuals. The party committee said it wanted to receive contributions above the legal limit for political committees.

In an interview last fall, Mr. McCutcheon said his goal was to encourage the adoption of conservative principles. “To me,” he said, “being a conservative means smaller government and more freedom.”Chief Justice Roberts said the core purpose of the First Amendment was to protect political speech from government interference, even if many people might welcome it.

“They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character,” he wrote. “Money in politics may at times seem repugnant to some, but so, too, does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

The decision chipped away at the central distinction drawn in Buckley v. Valeo, the court’s seminal 1976 campaign finance decision. Independent spending, the court said in Buckley, is political speech protected by the First Amendment. But contributions may be capped, the court said then, in the name of preventing corruption. The court added in passing that aggregate contribution limits were a “quite modest restraint upon protected political activity” that “serves to prevent evasion” of the base limits.

Chief Justice Roberts said that brief passage on overall limits had to be reconsidered in light of regulatory developments and other factors. But he added that the Buckley decision’s general structure remained intact. “We see no need,” he said, “to revisit Buckley’s distinction between contributions and expenditures.”

The chief justice said that while the $2,600 base limits were also intact, the overall caps placed an unacceptable burden on “an individual’s right to participate in the public debate through political expression and political association.”

“The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse,” he wrote.

So is this going to make quid pro quo easier to prove or less so? It is already statistically proven by two top colleges that candidates are…
Leveling the playing field is not an acceptable interest for the government, Chief Justice Roberts said. Nor is “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties,” he added, quoting Citizens United.

The only acceptable justification, he said, was rooting out “quid pro quo corruption” or the appearance of it.
Justice Breyer said that analysis was too narrow. “The anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges,” he wrote. “It is an interest in maintaining the integrity of our public governmental institutions.”

“Where enough money calls the tune,” he wrote, “the general public will not be heard.”

The Roberts court has been consistently hostile to campaign finance limits. In a half-dozen earlier cases, the five more conservative justices have voted together, though Chief Justice Roberts and Justice Samuel A. Alito Jr. have sometimes taken a more incremental approach than the bolder one called for by Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.

Wednesday’s decision is likely to increase overall campaign spending, but it may also rechannel some of it away from super PACs and toward candidates and parties.

“The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure,” Chief Justice Roberts wrote. “Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech.” He was joined by Justices Alito, Kennedy and Scalia. Justice Thomas wrote a concurring opinion.

The main opinions spent many pages arguing over the possibility that the basic limits could be circumvented without the overall caps. Justice Breyer gave detailed examples, which Chief Justice Roberts dismissed as speculative and highly implausible. The chief justice added that Congress could address some perceived loopholes through earmark requirements, transfer restrictions, segregated accounts and mandated disclosure, though he did not say that those efforts would pass constitutional muster.

Justice Breyer said there was little hope that regulators would vigorously enforce even the existing limits.

More broadly, he said the decision was one “that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.”

(Publicado originalmente en el New York Times el 2 de abril de 2014).

How to squeeze the political parties, por el equipo editorial del New York Times

Reince Priebus, the Republican Party chairman, was practically giddy on Wednesday imagining the riches he can squeeze from big private bank accounts as a result of the Supreme Court decision that knocked down yet another campaign finance limit. “We are grateful and we are excited,” he said, explaining that donors will now be able to “max out” in giving to more party committees, at far higher levels than previously allowed.

But actually, it is the big donors who will be squeezing the parties, not the other way around. They now have far more power to dictate terms to politicians, and will soon begin issuing demands to benefit their special interests.

Why? Donors will now have a wide array of choices in where to spend their political dollars, thanks to the Supreme Court. The 2010 Citizens United decision, combined with lower-court rulings, opened the door to giving unlimited amounts of money to “super PACs” and nonprofit political groups, money that was spent on electing and defeating specific candidates. The court’s McCutcheon decision on Wednesday allows donors to give as much as $3.6 million to joint fund-raising committees set up by the parties, which can be used to benefit individual candidates.

That makes the parties players in the big-money race for the first time, since an individual’s contributions to party committees had been limited to $74,600 per election cycle. But the parties will be competing with the super PACs for those six-figure checks, and the check writers know it. For that kind of money, donors expect something beyond a nice table at a fund-raiser and a photo with a party leader. And the parties, which are controlled by the top lawmakers, are in a position to provide it — tax benefits, special clauses in regulatory bills, spending that helps a particular industry.

Donors, of course, have differing needs and demands. Some, like the Koch brothers, seek broad ideological change, knowing that reducing the overall power of government will give their widely scattered industries more freedom and higher profits, unburdened by pesky environmental and financial regulations. Others, like Tom Steyer, a billionaire investor, are more narrowly focused on specific issues, like reducing man-made climate change.

Industries and their executives often have even more closely tailored demands of government, and are willing to pay to make those demands in person. A cable company wants approval of a merger. Wireless companies and broadcasters want pieces of the frequency spectrum. Banks and payday lenders want less regulation and oversight. Medical device makers want to get rid of a tax. All of them spend fortunes on lobbying, and now their executives can dangle the prospect of millions before the parties to get the access they need. (The companies themselves can’t write those checks, but they can give whatever they want to super PACs and nonprofits.)

A memo by Covington & Burling, a legal and lobbying firm, explains to its corporate clients how giving post-McCutcheon will work. “The difference here is that, unlike with super PACs, elected politicians are able to request the contributions directly from the high-net-worth donor,” the firm wrote. The decision will “allow power to collect around any member [of Congress] who can command a national or regional base of wealthy donors, such as a prominent Tea Party or environmental advocate.”

In other words, lawmakers who are the most responsive to special interests and ideologies will reel in the biggest donations to their parties, thereby gaining more power.

Chief Justice John Roberts Jr., showing insincere naïveté, doesn’t consider that purchase of access to be corruption, which he apparently detects only in bribery. But the donors know that American politics is now for sale, and they are ready to buy.

(Publicado originalmente en el New York Times el 3 de abril de 2014).

Supreme Court strikes down overall political donation cap, por Adam Liptak

The Supreme Court on Wednesday continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.

The ruling, issued near the start of a campaign season, will very likely increase the role money plays in American politics.
The 5-to-4 decision, with the court’s more conservative members in the majority, echoed Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.

Wednesday’s decision seemed to alter campaign finance law in subtle but important ways, notably by limiting how the government can justify laws said to restrict the exercise of First Amendment rights in the form of campaign contributions.

The court’s 88-page decision reflected sharply different visions of the meaning of the First Amendment and the role of government in regulating elections, with the majority deeply skeptical of government efforts to control participation in politics, and the minority saying that such oversight was needed to ensure a functioning democracy.

Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”
In a dissent from the bench, Justice Stephen G. Breyer called the majority opinion a disturbing development that raised the overall contribution ceiling to “the number infinity.”

“If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.”

Such oral dissents are rare, and they signal deep disagreements. But Chief Justice Roberts and Justice Breyer noted from the bench that the other side’s arguments were well presented.

Wednesday’s decision did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.

In his written opinion, Justice Breyer said Wednesday’s decision would allow “a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The ruling, which goes in effect in a matter of weeks, concerned only contributions from individuals. Federal law continues to ban direct contributions by corporations and unions, though they remain free to spend unlimited sums through “super PACs” and similar vehicles.

The case, McCutcheon v. Federal Election Commission, No. 12-536, was brought by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee. Mr. McCutcheon, who had contributed a total of about $33,000 to 16 candidates for federal office in the 2012 election cycle, said he had wanted to give $1,776 each to 12 more but was stopped by the overall cap for individuals. The party committee said it wanted to receive contributions above the legal limit for political committees.

In an interview last fall, Mr. McCutcheon said his goal was to encourage the adoption of conservative principles. “To me,” he said, “being a conservative means smaller government and more freedom.”Chief Justice Roberts said the core purpose of the First Amendment was to protect political speech from government interference, even if many people might welcome it.

“They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character,” he wrote. “Money in politics may at times seem repugnant to some, but so, too, does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

The decision chipped away at the central distinction drawn in Buckley v. Valeo, the court’s seminal 1976 campaign finance decision. Independent spending, the court said in Buckley, is political speech protected by the First Amendment. But contributions may be capped, the court said then, in the name of preventing corruption. The court added in passing that aggregate contribution limits were a “quite modest restraint upon protected political activity” that “serves to prevent evasion” of the base limits.

Chief Justice Roberts said that brief passage on overall limits had to be reconsidered in light of regulatory developments and other factors. But he added that the Buckley decision’s general structure remained intact. “We see no need,” he said, “to revisit Buckley’s distinction between contributions and expenditures.”

The chief justice said that while the $2,600 base limits were also intact, the overall caps placed an unacceptable burden on “an individual’s right to participate in the public debate through political expression and political association.”

“The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse,” he wrote.

So is this going to make quid pro quo easier to prove or less so? It is already statistically proven by two top colleges that candidates are…
Leveling the playing field is not an acceptable interest for the government, Chief Justice Roberts said. Nor is “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties,” he added, quoting Citizens United.
The only acceptable justification, he said, was rooting out “quid pro quo corruption” or the appearance of it.

Justice Breyer said that analysis was too narrow. “The anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges,” he wrote. “It is an interest in maintaining the integrity of our public governmental institutions.”

“Where enough money calls the tune,” he wrote, “the general public will not be heard.”

The Roberts court has been consistently hostile to campaign finance limits. In a half-dozen earlier cases, the five more conservative justices have voted together, though Chief Justice Roberts and Justice Samuel A. Alito Jr. have sometimes taken a more incremental approach than the bolder one called for by Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.

Wednesday’s decision is likely to increase overall campaign spending, but it may also rechannel some of it away from super PACs and toward candidates and parties.

“The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure,” Chief Justice Roberts wrote. “Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech.” He was joined by Justices Alito, Kennedy and Scalia. Justice Thomas wrote a concurring opinion.

The main opinions spent many pages arguing over the possibility that the basic limits could be circumvented without the overall caps. Justice Breyer gave detailed examples, which Chief Justice Roberts dismissed as speculative and highly implausible. The chief justice added that Congress could address some perceived loopholes through earmark requirements, transfer restrictions, segregated accounts and mandated disclosure, though he did not say that those efforts would pass constitutional muster.

Justice Breyer said there was little hope that regulators would vigorously enforce even the existing limits.
More broadly, he said the decision was one “that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.”

(Publicado originalmente en el New York Times el 2 de abril de 2014).

 

 

The Guardian, “Margaret Thatcher: the lady and the land she leaves behind”

Whether you were for her or against her, Margaret Thatcher set the agenda for the past three and a half decades of British politics. All the debates that matter today in the public arena, whether in economics, social policy, politics, the law, the national culture or this country’s relations with the rest of the world, still bear something of the imprint she left on them in her years in office between 1979 and 1990. More than 20 years after her party disposed of her when she had become an electoral liability, British public life is still defined to an extraordinary degree by the argument between those who wish to continue or refine what she started and those who want to mitigate or turn it back. Just as in life she shaped the past 30 years, so in death she may well continue to shape the next 30. These are claims that can be made about no other modern British prime minister. She was in many ways the most formidable peacetime leader this country has had since Gladstone.

The fact that Mrs Thatcher was Britain’s first and so far only woman major party leader, chosen entirely on merit, and then Britain’s first woman prime minister, were of course huge landmarks. But her gender, though fundamental to her story, was in the end secondary. It was at least as significant, in the evolution of the late 20th-century Tory party, that she came from a petit-bourgeois background, a shopkeeper’s daughter, though the man she overthrew in 1975, Ted Heath, had similarly middling origins and John Major an even humbler start. There was something of the rebel and outsider about her, as well as much that was stultifyingly conventional.

Mrs Thatcher’s transcendent quality, however, was that she was a political warrior. She had a love of political combat, a zealotry for the causes she believed in, a reluctance to listen to advice, a conviction that she was always right and never wrong, and a scorn for consensus that set her apart from almost all her predecessors and, with the occasional exception of Tony Blair, from those who came after.

Mrs Thatcher was proof positive that personality matters in politics. As a young minister she did not seem destined for greatness. Even her election as Tory leader was something of a surprise, though her audacity in going for the top job while so many more senior figures hesitated was an indication of what was to come. Early on in her leadership, she was much patronised by male colleagues and adversaries. But as the social democratic consensus faltered in the 1970s and then cracked in the 1980s she rode the wind of history with an opportunist’s brilliance. A Britain led by Willie Whitelaw or Michael Heseltine would have faced most of the same challenges that the one led by Mrs Thatcher faced. But the response would have been completely different. For good or ill, she made a difference.

The late Guardian columnist and Thatcher biographer Hugo Young, reflecting on her overthrow in 1990, identified five large events that would not have happened the way they did without her.

The first was the Falklands war of 1982, which Young described as “a prime example of ignorance lending pellucid clarity to her judgment”. Surrounded by sceptical men who had fought in the second world war and knew what combat involved, she went for it. The result was an astonishing and absurd military triumph followed by an electoral one, which elevated Mrs Thatcher from the ordinary to the extraordinary.

A second, which would not have been possible without the authority conferred by the first, was the dethroning of trade union power. Once again, against the instincts of ministers – and the grandest of grandees, Harold Macmillan – who all preferred compromise to confrontation, she fought the miners’ strike to the bitterest of finishes, in a contest that was always about industrial strategy rather than just coal.

Arguably even more important than these headline events was the third example, the conduct of economic policy. There had been a New Right before Mrs Thatcher, but it was the ideas of Friedrich von Hayek, as articulated to her by a series of domestic rightwing ideologues, on which she seized. It was Mrs Thatcher, abetted by her chancellors Sir Geoffrey Howe and Nigel Lawson, who drove the policy that the public sector was an unproductive burden on the wealth-creating sector and on taxpayers, and must therefore be reduced and privatised. It was she who insisted that the chief aim of government economic policy should be price stability, and that it should not give priority to reducing unemployment or to stimulating demand.

And it was she again who seemed to believe, far more than those around her, that the market economy required not a minimal state to protect it but a strong state, marked by everything from the abolition of local government autonomy to the enhancement of police powers, intolerance towards gay rights, the broadcasting ban on Sinn Féin, and increased defence spending. She made enemies without flinching, and they reciprocated. Her rule was marked by the most serious urban riots of the 20th century, one of the most divisive strikes in recent times, and the century’s most audacious prime ministerial assassination attempt, which thankfully she survived.

Mrs Thatcher’s unique mark was also felt in the two confrontations that ultimately undid her. The first was the poll tax, which was disastrous, unjust and was her policy alone. The poll tax came to embody a prime minister who ruled from conviction not sense, and who did not care about, indeed gloried in, a confrontation that destroyed the Tory party in Scotland and may indirectly come to destroy the union she otherwise championed. Similarly, and less easily disposed of after her fall, was Europe. Mrs Thatcher began her prime ministership as a pragmatic, if often acerbic, European. But as she became a bigger figure on the world stage, feted both by Mr Reagan and by Mikhail Gorbachev, she became increasingly strident and disruptive towards Europe. Her style became the policy, cementing the love affair with an already overmighty press but with disastrous effects for her leadership (which was ended by Sir Geoffrey’s resignation over the issue), her party (which became obsessed with the subject) and for Britain. Except for Mr Blair in his early years, every British leader since has felt Mrs Thatcher at his shoulder in dealings with Europe, to the lasting national loss.

When she arrived in Downing Street in 1979 she talked about replacing discord with harmony. She may briefly have meant it, but the harmony she sought in the long term was one whose terms were set overwhelmingly in the interests of the British business class as she perceived them. She disdained the public realm and presided over the growth of the cult of marketplace success as the foundation of a good society – a low-tax, home-owning, privatised, high-carbon, possessive, individualist, winner-takes-all financial model whose failure haunts the choices still facing this country today. Much was wrong with the Britain she inherited in 1979, undemocratic union power among them, and many things, though not wrong in themselves, were unsustainable without radical change, including some nationalised utilities. Britain would have had to alter radically in the 1980s and 90s, and the process would have been hard and controversial. But, as Germany and other northern nations have shown, economic dynamism has been possible without the squandering of social cohesion that Mrs Thatcher promoted.

In the last analysis, though, her stock in trade was division. By instinct, inclination and effect she was a polariser. She glorified both individualism and the nation state, but lacked much feeling for the communities and bonds that knit them together. When she spoke, as she often did, about “our people”, she did not mean the people of Britain; she meant people who thought like her and shared her prejudices. She abhorred disorder, decadence and bad behaviour but she was the empress ruler of a process of social and cultural atomism that has fostered all of them, and still does.

The governments that followed have struggled to put a kinder and more cohesive face on the forces she unleashed and to create stability and validity for the public realm that yet remains. New Labour offered a first response. The coalition is attempting a second draft in grimmer circumstances, and there will be others. There can certainly be no going back to the failed postwar past with which Margaret Thatcher had to wrestle. But there should be no going back to her own failed answer either. She was an exceptionally consequential leader, in many ways a very great woman. There should be no dancing on her grave but it is right there is no state funeral either. Her legacy is of public division, private selfishness and a cult of greed, which together shackle far more of the human spirit than they ever set free.

(Source: http://www.guardian.co.uk/commentisfree/2013/apr/08/margaret-thatcher-editorial).

 

Neil MacFarquhar, “UN Treaty Aims to Limit Arms Exports to Rights Abusers”

The United Nations General Assembly voted overwhelmingly on Tuesday to approve the first-ever treaty to regulate the enormous global trade in conventional weapons, for the first time linking sales to the human-rights records of the buyers.
The vote on the Arms Trade Treaty came after an effort to achieve a consensus on the treaty among all 193 member states of the United Nations failed last week, with Iran, North Korea and Syria blocking it. Those three countries, often ostracized as pariahs, contended the treaty was full of deficiencies and had been structured to be unfair to them.

The treaty requires states exporting conventional weapons to develop criteria that would link exports to avoiding human-rights abuses, terrorism and organized crime. It would also ban shipments if they were deemed harmful to women and children. Countries that join the treaty would have to report publicly on sales every year.
Although the treaty has no compulsory enforcement mechanism, it exposes the arms-trade process to new levels of transparency that proponents of the treaty say could help severely limit illicit weapons deals going forward.

The vote was heavily lopsided in favor, with 154 supporting it — including the United States, the leading arms exporter — and the same three nations that had blocked consensus approval last week opposing.

But 23 others abstained, notably Russia and China, which are also major arms sellers globally, along with major importers like India, Pakistan and Indonesia. Those absentions called into question how effective the treaty might prove to be.

Treaty proponents pinned their hopes on a quick ratification by a large number of countries, anticipating that would put pressure on the large countries that abstained to ascribe to it as well. The proponents noted that all those abstaining countries had been willing to extend their consensus to the original treaty. But such significant abstentions could also signal that transforming the treaty into international law will be a more arduous process than if consensus had been achieved.
Vitaly I. Churkin, the Russian envoy to the United Nations, said Russian misgivings about what he called ambiguities in the treaty, including how terms like genocide would be defined, had pushed his government to abstain.

Support was particularly strong among many African countries — even if the compromise text was weaker than some had anticipated — with most governments asserting that over the long run the treaty would curb the arms sales that have fueled so many conflicts.
Nations can begin joining the treaty in early June, and it goes into effect as international law once 50 have ratified it. Given that the vote in the General Assembly was so overwhelmingly in support, it is expected to go into effect this year.

In the run-up to the vote on Tuesday, numerous states objected to the treaty because they said it was heavily weighted in favor of the exporters — allowing them to make subjective judgments about which states met the humanitarian guidelines. The treaty could be abused in the future as a means to foment unjust political pressure, said several countries, including Cuba, Nicaragua and Syria.

What impact it will have on the global conventional weapons trade — and over what period of time — is a more difficult question. Experts are certain it will change things eventually. In the shorter term it is more difficult to assess.
The United States and many European countries say they already have arms sales guidelines in effect that tie sales to the human-rights records of the buyers and other issues included in the treaty.

It is considered unlikely that the treaty will have any effect on the supply of outside weapons to the Syrian government, for example, because Iran is opposed to it and Russia is hesitant. Both are the main conduits for conventional weapons to Damascus.

Those who pushed hard for the treaty, especially among rights groups, thought it would have an important long-term impact, however.
“The Arms Trade Treaty provides a powerful alternative to the body-bag approach currently used to respond to humanitarian crises,” said Raymond Offenheiser, the president of Oxfam America. “Today nations enact arms embargoes in response to humanitarian crises only after a mass loss of life. The treaty prohibits the weapon sales in the first place.”

It should help shut down safe havens where rogue arms dealers can sell weapons to war criminals with impunity, he said.
Frank Jannuzi, head of Amnesty International’s Washington office, said the final draft of the treaty was not perfect but represented what many rights groups considered an enormous advance.

“To the extent that there’s any enforcement mechanism in this treaty, it’s an actual benchmark in which we can judge states’ behavior, whereas before it was extremely subjective,” he said. “Now there’s a process. So that’s a step forward. For all those unlicensed exports that end up fueling violence, this treaty begins to get a handle on that through much more rigorous licensing and reporting.”

The treaty covers trade in tanks, armored combat vehicles, large-caliber weapons, combat aircraft, attack helicopters, warships, missiles and launchers, small arms and light weapons. Ammunition exports are subject to the same criteria as the other war matériel. Imports are not covered.
Asked about the potential impact of the treaty, Thomas M. Countryman, the assistant secretary of state who led the American delegation to the talks, said he did not expect an instant impact on the level of trade nor the level of violence around the world.

But over a longer period of time, he said before the vote, “I think it will contribute to a reduction in violence.” More states will impose controls on their own legal exports and the treaty demands more effective action against black-market arms brokers and the diversion of weapons, he said.

Despite repeated assurances by Obama administration officials that the treaty would not affect American domestic use of firearms or the Second Amendment, the National Rifle Association has criticized the treaty and vowed to fight ratification in the Senate.

Mr. Countryman downplayed any negative effect on the American arms industry, which accounts for about 30 percent of the $60 billion to $70 billion annual trade in conventional arms.

“This treaty will bring much of the rest of the world not up to the American standards but much closer to the American standards,” he said. “In that sense, I believe it levels the playing field and gives American manufacturers a better competitive position in the world. ”

There were also doubters. The seven years of negotiations and repeated efforts to water down the treaty raised doubts about just how sincere the implementation might be.

“It is clear that while many countries want a strong and robust treaty,” said Lyndira Oudit, a senator from Trinidad and Tobago and a member of a group of international legislators who pushed for passage, “some actually seem to want a weak one, with vague language and narrow definitions, which allow for wide interpretation and maintenance of the status quo, both of players and of process.”

Indonesia, Russia, Syria and others objected to the fact that the treaty did not ban outright arms transfers to rebel groups and other nonstate actors.
Western nations, including the largest arms exporters, opposed any specific reference to nonstate actors because they argued that there were times when national liberation movements needed protection from abusive governments. Supporters said the treaty covers nonstate actors because all conventional weapons sales will be judged under the same criteria, and refers to “unauthorized end user or end users.”

(Source: http://www.nytimes.com/2013/04/03/world/arms-trade-treaty-approved-at-un.html?pagewanted=all&_r=0).

Human Rights Watch, “Chávez’s Authoritarian Legacy”

Hugo Chávez’s presidency (1999-2013) was characterized by a dramatic concentration of power and open disregard for basic human rights guarantees.

After enacting a new constitution with ample human rights protections in 1999 – and surviving a short-lived coup d’état in 2002 – Chávez and his followers moved to concentrate power. They seized control of the Supreme Court and undercut the ability of journalists, human rights defenders, and other Venezuelans to exercise fundamental rights.

By his second full term in office, the concentration of power and erosion of human rights protections had given the government free rein to intimidate, censor, and prosecute Venezuelans who criticized the president or thwarted his political agenda. In recent years, the president and his followers used these powers in a wide range of prominent cases, whose damaging impact was felt by entire sectors of Venezuelan society.

Many Venezuelans continued to criticize the government. But the prospect of reprisals – in the form of arbitrary or abusive state action – forced journalists and human rights defenders to weigh the consequences of disseminating information and opinions critical of the government, and undercut the ability of judges to adjudicate politically sensitive cases.

Assault on Judicial Independence.
In 2004, Chávez and his followers in the National Assembly carried out a political takeover of Venezuela’s Supreme Court, adding 12 seats to what had been a 20-seat tribunal, and filling them with government supporters. The packed Supreme Court ceased to function as a check on presidential power. Its justices have openly rejected the principle of separation of powers and pledged their commitment to advancing Chávez’s political agenda. This commitment has been reflected in the court’s rulings, which repeatedly validated the government’s disregard for human rights.

Lower-court judges have faced intense pressure not to issue rulings that could upset the government. In 2009, Chávez publicly called for the imprisonment of a judge for 30 years after she granted conditional liberty to a prominent government critic who had spent almost three years in prison awaiting trial. The judge, María Lourdes Afiuni, was arrested and spent more than a year in prison in pretrial detention, in deplorable conditions. She remains under house arrest.

Assault on Press Freedoms.
Under Chávez, the government dramatically expanded its ability to control the content of the country’s broadcast and news media. It passed laws extending and toughening penalties for speech that “offends” government officials, prohibiting the broadcast of messages that “foment anxiety in the public,” and allowing for the arbitrary suspension of TV channels, radio stations, and websites.

The Chávez government sought to justify its media policies as necessary to “democratize” the country’s airwaves. Yet instead of promoting pluralism, the government abused its regulatory authority to intimidate and censor its critics. It expanded the number of government-run TV channels from one to six, while taking aggressive steps to reduce the availability of media outlets that engage in critical programming.

In response to negative coverage, Chávez repeatedly threatened to remove private stations from the airwaves by blocking renewal of their broadcast licenses. In 2007, in an act of blatant political discrimination, his government prevented the country’s oldest private television channel, RCTV, from renewing its license and seized its broadcasting antennas. Three years later, it drove RCTV off cable TV as well by forcing the country’s cable providers to stop transmitting its programs.

The removal of RCTV left only one major channel, Globovisión, that continued to be critical of the president. The Chávez government repeatedly pursued administrative sanctions against Globovisión, which have kept the station in perpetual risk of suspension or closure. It also pressed criminal charges against the station’s president, a principal owner, and a guest commentator after they made public statements criticizing the government.

The sanctioning and censorship of the private media under Chávez have had a powerful impact on broadcasters and journalists. While sharp criticism of the government is still common in the print media, on Globovisión, and in some other outlets, the fear of government reprisals has made self-censorship a serious problem.

Rejection of Human Rights Scrutiny.
In addition to neutralizing the judiciary as a guarantor of rights, the Chávez government repudiated the Inter-American human rights system, failing to carry out binding rulings of the Inter-American Court of Human Rights and preventing the Inter-American Commission on Human Rights from conducting in-country monitoring of human rights problems. In September 2012, Venezuela announced its withdrawal from the American Convention on Human Rights, a move that leaves Venezuelans without recourse to what has been for years – in countries throughout the region – themost important external mechanism for seeking redress for abuses when national courts fail to provide it.

The Chávez government also sought to block international organizations from monitoring the country’s human rights practices. In 2008, the president had representatives of Human Rights Watch forcibly detained and summarily expelled from the country after they released a report documenting his government’s violation of human rights norms. Following the expulsion, his then-foreign minister and now chosen successor, Nicolás Maduro, announced that, “Any foreigner who comes to criticize our country will be immediately expelled.”

Under Chávez, the government also sought to discredit human rights defenders by accusing them of receiving support from the US government to undermine Venezuelan democracy. While local nongovernmental organizations have received funding from US and European sources – a common practice in Latin America where private funding is scarce – there is no credible evidence that the independence and integrity of the defenders’ work has been compromised by international support. Nonetheless, in 2010, the Supreme Court ruled that individuals or organizations receiving foreign funding could be prosecuted for “treason.” The National Assembly passed legislation prohibiting organizations that “defend political rights” or “monitor the performance of public bodies” from receiving international funding. It also imposed stiff fines on organizations that “invite” to Venezuela foreigners who express opinions that “offend” government institutions.

Embracing Abusive Governments.
Chávez also rejected international efforts to promote human rights in other countries. In recent years, Venezuela consistently voted against UN General Assembly resolutions condemning abusive practices in North Korea, Burma, Iran, and Syria. Moreover, Chávez was a vocal supporter of Syria’s Bashar al-Assad, Libya’s Muammar Gaddafi, and Iran’s Mahmoud Ahmadinejad, bestowing upon each of these leaders the “Order of the Liberator,” Venezuela’s highest official honor.
Under Chávez, Venezuela’s closest ally was Cuba, the only country in Latin America that systematically represses virtually all forms of political dissent. Chávez identified Fidel Castro – who headed Cuba’s repressive government until his health deteriorated in 2006 – as his model and mentor.

Selected cases documented in the report “Tightening the Grip: Concentration and Abuse of Power in Chávez’s Venezuela:
After Judge María Lourdes Afiuni granted conditional freedom in December 2009 to a government critic who had spent nearly three years in prison awaiting trial on corruption charges, Chávez denounced her as a “bandit” and called for her to be given a 30-year prison sentence. Although Afiuni’s ruling complied with a recommendation by United Nations human rights monitors – and was consistent with Venezuelan law, she was promptly arrested and ordered to stand trial by a provisional judge who had publicly pledged his loyalty to Chávez. (“I give my life for the Revolution,” he wrote on the website of the president’s political party. “I would never betray this process, and much less my Commander.”) Afiuni spent more than a year in pretrial detention, in deplorable conditions, together with convicted prisoners – including many she herself had sentenced – who repeatedly threatened her with death. In the face of growing criticism from international human rights bodies, Afiuni was moved to house arrest in February 2011. After long delays, her trial opened in November 2012. Afiuni has refused to appear, arguing that she would not receive a fair trial, but the proceedings have continued in her absence.

After the weekly newspaper 6to Poder published a satirical article in August 2011 depicting six high-level female officials – including the attorney general and Supreme Court president – as dancers in a cabaret entitled “The Revolution,” directed by “Mr. Chávez,” the six officials called for a criminal investigation and for the paper to be closed down. Within hours, arrest warrants were issued for the paper’s director, Dinora Girón, and its president, Leocenis García, on charges of “instigation of public hatred.” Girón was arrested the following day, held for two days, then granted conditional liberty. García went into hiding, but turned himself in to authorities the following week, and was imprisoned for two months, then granted conditional freedom. Both remain under criminal investigation pending trial. The newspaper is under a court order to refrain from publishing any text or images that could constitute “an offense and/or insult to the reputation, or to the decorum, of any representative of public authorities, and whose objective is to expose them to public disdain or hatred.”

After the human rights defender Rocío San Miguel appeared on a television show in May 2010 and denounced the fact that senior military officers were members of Chávez’s political party (a practice prohibited by the Venezuelan Constitution), she was accused on state television of being a “CIA agent” and of “inciting insurrection.” The official magazine of the Armed Forces accused her of seeking to foment a coup d’état. The nongovernmental organization that she directs, Citizen Watch, was also named – along with other leading groups – in a criminal complaint filed by several youth groups affiliated with Chávez’s political party for alleged “treason” for receiving funding from the US government. San Miguel has since received repeated death threats from unidentified people. While she does not know the source of those threats, she believes the denunciations in the official media have made her more vulnerable to such acts of intimidation.

After the human rights defender Humberto Prado criticized the government in June 2011 for its handling of a prison riot, Chávez’s justice minister accused him of seeking to “destabilize the prison system” and the vice president claimed the criticism was part of a strategy to “politically destabilize the country.” Within days, Prado began receiving anonymous threats, including phone calls telling him to keep quiet if he cared about his children, prompting him to leave the country with his family for two months. As he prepared to return, he received an anonymous email with the image of what appeared to be an official document from the Attorney General’s Office stating that he was under criminal investigation for “treason.” The prosecutor whose name appears on the letter later told him he had not written or signed it. Prado continued to receive threats from unidentified sources. Like San Miguel, he believes the verbal attacks by Chávez officials have made him more vulnerable to such acts of intimidation.

After Venezuela’s oldest television channel, RCTV, broadcast a video in November 2006 showing Chávez’s energy minister telling his employees at the state oil company to quit their jobs if they did not support the president, Chávez publicly warned RCTV and other channels that they could lose their broadcasting license – a threat he had made repeatedly in response to critical broadcasting. A month later, the president announced his unilateral decision that RCTV would no longer be “tolerated” on the public airwaves after its license expired the following year. RCTV stopped transmitting on open frequencies in May 2007, but continued as a cable channel. Since then, the government has used its regulatory power to drive RCTV off cable television as well. In January 2010, the National Telecommunications Commission (CONATEL) determined that RCTV was a “national audiovisual producer” and subject to newly established broadcasting norms. Days later, Chávez’s communications minister threatened to open administrative investigations against cable providers whose broadcast channels did not comply with the norms. In response, the country’s cable providers stopped broadcasting RCTV International. CONATEL has since denied RCTV’s repeated efforts to re-register as a cable channel. Today, RCTV can only be viewed on the Internet, and it no longer covers news due to lack of funding.

After Globovisión, the only remaining television station with national coverage consistently critical of Chávez’s policies, provided extensive coverage of a prison riot in June 2011 – including numerous interviews with distressed family members who claimed security forces were killing prisoners, Chávez responded by accusing the station of “set[ting] the country on fire…with the sole purpose of overthrowing this government.” The government promptly opened an administrative investigation of Globovisión’s coverage of the violence and, in October, ruled that the station had “promoted hatred for political reasons that generated anxiety in the population,” and imposed a US$ 2.1 million fine, equivalent to 7.5 percent of the company’s 2010 income. Globovisión is facing seven additional administrative investigations – including one opened in response to its reporting that the government failed to provide the public with basic information in the aftermath of an earthquake and, most recently, one for transmitting spots that questioned the government’s interpretation of the constitutional requirements for Chávez’s 2013 inauguration. Under the broadcasting law enacted by Chávez and his supporters in the National Assembly in 2004, a second ruling against Globovisión could result in another heavy fine, suspension of the station’s transmission, or revocation of its license.

After Oswaldo Álvarez Paz, an opposition politician, appeared on Globovisión’s main political talk show in March 2010 and commented on allegations of increased drug trafficking in Venezuela and a Spanish court ruling that referred to possible collaboration between the Venezuelan government and Colombian guerrillas, Basque separatists, and other “terrorist” groups, Chávez responded in a national broadcast that these comments “could not be permitted” and called on other branches of government “to take action.” Two weeks later, Álvarez Paz was arrested on grounds that his “evidently false statements” had caused “an unfounded fear” in the Venezuelan people. Álvarez Paz remained in pretrial detention for almost two months and was then granted conditional liberty during his trial, which culminated in July 2011 with a guilty verdict and a two-year prison sentence. The judge allowed Álvarez Paz to serve his sentence on conditional liberty, but prohibited him from leaving the country without judicial authorization.

After Globovisión’s president, Guillermo Zuloaga, at an international conference in March 2010, criticized Chávez’s attacks on media freedoms and accused the president of ordering the shooting of demonstrators prior to the 2002 coup, the pro-Chávez Congress called for a criminal investigation. Zuloaga was arrested on charges of disseminating false information and offending the president. A judge soon granted him conditional liberty, but in June Chávez publicly insisted that he be re-arrested. Two days later, members of the National Guard raided Zuloaga’s home and the following week a judge issued a new arrest warrant for him on an unrelated case, though he fled the country before it could be executed and has not returned.

After Nelson Mezerhane, a banker and principal shareholder of Globovisión, claimed in a December 2009 interview that people “linked to the government” had spread rumors that provoked withdrawal of savings from Venezuelan banks, Chávez denounced him, called on the attorney general “to open a formal investigation,” and threatened to nationalize Mezerhane’s bank. Chávez warned that, “[i]f a television station crosses the line again, violating the laws, lacking respect for society, the State, or institutions, it cannot, it should not remain open.” Six months later, the Attorney General’s Office seized Mezerhane’s home and shares in Globovisión, while the state banking authority nationalized his bank. The Attorney General’s Office also forbade Mezerhane from leaving the country, but he was abroad when the order was issued and has not returned.
After Tu Imagen TV, a local cable channel in Miranda state, was denounced by a pro-Chávez mayor in November 2010 for being “biased in favor of the political opposition,” CONATEL ordered the local cable provider to stop broadcasting the channel on the grounds that the channel and the provider had failed to comply with regulations requiring a written contract between the parties. Provided with a signed contract a month later, the agency waited eight months before authorizing the cable provider to renew broadcasting the channel. When it did, the channel’s director said, the agency threatened to take the channel off the air again if it continued to produce critical programming.

After the soap opera “Chepe Fortuna” ran a scene in January 2011 in which a character named Venezuela who had lost her dog – named Huguito (Little Hugo) – asks her boyfriend, “What will become of Venezuela without Huguito?” and he responds, “You will be free, Venezuela,” CONATEL called on the television channel, Televen, to “immediately suspend” the show on the grounds that it promoted “political and racial intolerance, xenophobia, and incitement to commit crimes.” The charge could lead to civil, criminal, and administrative sanctions, including the suspension or revocation of its license. Televen cancelled the program the same day.

(Source URL: http://www.hrw.org/news/2013/03/05/venezuela-chavez-s-authoritarian-legacy).